Delhi High Court
State vs Murari on 2 May, 2018
Equivalent citations: AIRONLINE 2018 DEL 394
Author: Vipin Sanghi
Bench: Vipin Sanghi, P. S. Teji
$~8.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 02.05.2018
% CRL.A. 70/2018
STATE ... Appellant
Through: Ms. Aashaa Tiwari, APP for the State.
versus
MURARI ..... Respondent
Through: Mr. Devesh Pratap Singh, Advocate
a/w the respondent
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE P. S. TEJI
VIPIN SANGHI, J. (ORAL)
1. The State has preferred the present appeal upon grant of leave, to assail the Judgment rendered by the Learned Additional Sessions Judge-01 South East District, New Delhi in Sessions Case No. 44/12 arising out of FIR No. 106/12 registered at Police Station Kalkaji under Section 376(2)(f) IPC, titled State Vs. Murari. By the impugned judgment the Learned ASJ has acquitted the respondent/ accused of the charge on the ground that the prosecution has not been able to prove the same beyond reasonable doubt against the accused.
CRL.A. 70/2018 Page 1 of 302. The background facts in which the present case arises have been taken note of in the impugned judgment. We reproduce the same as under:
"1. Brief facts of the prosecution case as per final report are that on 10.04.2012 complainant Asha along with her daughter aged two years (name is withheld as per law and she is being referred as victim hereinafter), her mother in law and one person Murari in drunken state came to police station and stated that Murari had raped her daughter. The statement of the complainant was recorded in which she stated that her daughter went to play out side at about 6.30 PM and she saw that Murari, who resides in neighbor, was playing with her by taking her in his lap. She stated that after some time one boy named Kamal came to her with victim and stated that he had taken her from the house of Murari. She was crying and her 'Kachi' was down. The complainant asked her about the reason and she pointed out towards house of Murari and told that Murari had hit her and pointed towards her private part. The complainant saw blood was coming out from her private part. She went to the house of Murari and took Murari to police station. On this statement of complainant, case was registered. Accused was sent for his medical examination. IO with the complainant, victim and other police officials visited the spot and inspected the same and also called Crime Team who also inspected the spot. Victim was also got medically examined from AIIMS Hospital and exhibits were taken into possession by CRL.A. 70/2018 Page 2 of 30 the police. Accused was arrested. Exhibits were sent to FSL for examination and after completion of investigation, charge sheet for the offence punishable under Section 376(2)(f) IPC against the accused was filed in the court and the case was committed to the Sessions Court."
3. The accused was charged with commission of offence punishable under Section 376(2)(f) IPC. Since the accused did not plead guilty to the charge, the matter went to trial. By the impugned judgment, the Trial Court has acquitted the respondent/ accused. The impugned judgment is only a five-page order. We consider it appropriate to extract the relevant portion thereof before we proceed to discuss the submissions and examine the correctness of the reasoning given by the learned Trial Court.
"6. Admittedly there is no witness who has seen the accused committing the offence with the victim and the case is based on the presumption of the mother of victim when she saw blood oozing out of private parts of victim. As per the testimony of the complainant she brought the accused with her to the police station. The IO or other police witnesses have not deposed that they examined the victim when was brought to the police station and they also observed blood stains on the body of the victim or that her clothes were having blood stains. As per witnesses, the IO with her team, complainant and victim went to the spot after registration of the case and from there the victim was sent for medical examination.
7. The victim was medically examined by PW5 in the hospital and she prepared her MLC Ex. PW5/A. The witness deposed that upon examination, she opined that the hymen of the prosecutrix was torn and that she also collected the vaginal smear and undergarments of the prosecutrix and sealed the CRL.A. 70/2018 Page 3 of 30 same with the seal of hospital along with the sample seal and handed over the same to the police. But in the MLC it is written that „undergarments sealed by police‟. The witness has also mentioned in the MLC „erosion on Labia Major, oozing from erosion seen, redness on Labia‟ but is is not mentioned that there was oozing of blood or there was evidence of oozing of blood from the genital parts of the victim as observed by her. The doctor has also not given her opinion to the torn of hymen whether it was fresh or old.
8. The samples and exhibits as collected during the investigations were sent for their examination to the FSL and PW14 examined them and as per her report no male profile could be generated from the samples of the victim due to degradation of samples. The witness has not reported about any semen or blood stains observed by her on the undergarment sent to her. Even all the witnesses who possessed the exhibits from seizing till their examination are not examined to complete the chain of evidence to show that they remained intact till the time of examination by PW14.
9. As per PW10 Ct. Seema, she accompanied the IO, complainant and the victim to the spot and at that time accused Murari was also there. As per this witness IO prepared the site plan at the spot itself. This witness is cited as a witness on the seizure memo of undergarment of the victim which was handed over by the complainant to the IO but she has not deposed even a single word in this regard in her testimony. PW11 HC Ajit Singh deposed that he along with ASI Kusum Dangi had gone to Sudhar Camp on 10.04.2012 and as per this witness the accused was not at the spot. Same is the testimony of IO PW13. It appears from the testimonies of PW10 and PW11 that one of them has not visited the spot however the IO has named both of them. All the witnesses examined has not observed any blood stains in the room of the accused or on any object present there. It is possible that if a sexual act with a child of the age two years is committed blood will ooze out naturally and the stains must be found at the place of offence and if there is no blood CRL.A. 70/2018 Page 4 of 30 stain it weakens the possibility of occurrence of crime at that place.
10. It is cardinal principle of criminal jurisprudence that the guilt of the accused is required to be proved beyond doubt and that the presumption and assumption can not take place of evidence. The prosecution is not able to prove with out doubt that blood oozed from the genital parts of the victim and that it was due to sexual assault made by the accused upon her. Thus on the basis of evidence oral and documentary adduced by the prosecution it can not be said beyond doubt that the accused committed rape upon the victim."
4. Ms. Aasha Tiwari, learned APP has drawn our attention, firstly, to the Rukka Ex. PW-1/A & PW-13/A, wherein the mother of the prosecutrix/ complainant Asha contemporaneously complained that on the fateful day at about 6:30 P.M., the two-year daughter of the complainant, i.e. the prosecutrix went down to play; the complainant saw the accused- who is a neighbor residing in a jhuggi which is 4-5 jhuggis apart, took the prosecutrix in his lap; the accused was playing with the prosecutrix; after some time, Kamal - the boy who stays in a nearby jhuggi, brought the prosecutrix in his lap and informed the complainant that he has got the prosecutrix from Murari - the accused. The complainant stated that the prosecutrix was crying loudly and her underwear was pulled down. When the prosecutrix was crying, she asked the prosecutrix as to what the matter was? The prosecutrix pointed out towards the house of the accused. The complainant asked the prosecutrix whether the accused- Murari had hit her and if so, where? The prosecutrix pointed towards her private part and informed the complainant that the accused had hit her on her vagina (susu mein maara). The complainant stated that she saw that the prosecutrix was bleeding from CRL.A. 70/2018 Page 5 of 30 her vagina (pesaab karne ki jagah se khoon nikal raha thaa). She stated that she was stunned to observe the same, and she ran towards the jhuggi of Murari - the accused. She stated that the accused Murari was alone in the jhuggi and that two of his brothers had gone for work. She caught hold of Murari and brought him outside the jhuggi and took him to the Police Station. She also took the prosecutrix with her to the Police Station. She also stated that the police had also seen the blood oozing out. She also recorded that the underwear of the prosecutrix - of yellow color, was taken into custody by the police and sealed. The same was seized vide seizure memo Ex. PW-1/B. She complained that the accused - Murari had committed rape upon her two-year minor daughter. She demanded that medical examination of her daughter be got conducted and action be taken against the accused. On the basis of the Rukka, the FIR in question came to be registered under Section 376 IPC against the accused at 07:45 P.M. The accused was arrested at the Police Station itself vide arrest memo Ex. PW- 6/B.
5. The medical examination of the prosecutrix was got conducted on the same day, i.e., 10.04.2012 at 08:45 P.M. The medical history recorded in the MLC Ex.PW-5/A, as given by the complainant-Asha was that her daughter was playing outside when she was informed by a neighbor-Kamal, that the prosecutrix had been sexually assaulted by Murari, who is also a neighbor. The doctor noted:
"No H/o any physical trauma CRL.A. 70/2018 Page 6 of 30 H/o bleeding pv her undergarments were stained with blood".
6. Upon examination the doctor viewed:
" L/E erosion on (L) Labia major oozing from erosion seen Redness on Labia ...........
Hymen-torn, No Foul smelling discharge.
No other C/o external injury undergarments sealed by police Vaginal smear made (3) slides sent for examination"
7. The medical examination of the accused was also got conducted vide Ex.PW4/A. During examination, the doctor, inter alia, found smell of alcohol present from his mouth. However, there was no injury noticed on the private part of the accused.
8. The statement of Kamal aged about 13 years was got recorded under Section 164Cr.P.C. on 11.4.2012, i.e. very next day of the incident vide Ex.PW-9/B. In his statement, Kamal stated that on 10.04.2012, when he was going in the lane, the accused handed over the prosecutrix to him and told him to hand her over to "Bhabhi" i.e., the complainant. He further stated that the prosecutrix was pointing towards her vagina (peshaab karne ki jagah) and she was stating that Murari has done something to her over there. The prosecutrix was crying a lot and her underwear was half lowered. He also stated that she was bleeding from her vagina. He handed over the prosecutrix to her mother. The testimony of Kamal was recorded as PW-2 before the Court. His testimony is consistent with his statement recorded CRL.A. 70/2018 Page 7 of 30 under Section 164 Cr. P.C. In his testimony, i.e. examination-in-chief, he stated:
"On 10.04.2012 about 06:45 P.M. I was going towards my house. Accused Murari called me. I went to his jhuggi. Accused Murari handed over to me baby "K"(name withheld). The Kachchi ( underwear) of Baby "K" was lowered upto knee and she was weeping. I took her home and handed over to her mother. On inquiry from "K" by her mother about the cause of her crying, she pointed out towards her private part and also pointed out towards the jhuggi of Murari accordingly, the mother of "K" went to the jhuggi of Murari and brought him from his jhuggi. I.O. recorded my statement to this effect. Accused Murari is present in the Court today and correctly identified by the witness."
9. Kamal PW2 was cross examined on behalf of the accused. Insofar as it is relevant, Kamal stated in his cross-examination as follows:
"The accused called me while I was coming back. The Jhuggi of accused Murari is at the distance of two jhuggi from my jhuggi. The accused is not related to me. The mother of the prosecutrix is staying on the first floor of the adjacent jhuggi of my jhuggi. The jhuggi of the mother of the prosecutrix is fourth one from the Jhuggi of accused Murari. When accused Murari called me he was coming downstairs from his jhuggi. The jhuggi of accused Murari is constructed upto three storeys. I went to play after handing over "K" to her mother. The police inquired from me about the incident on the same day in the evening at about 07:00 P.M. and recorded my statement. The police had inquired from me in the police station."
10. He denied the suggestion that no such incident, as alleged by him, ever took place, or that he was deposing at the instance of his father, or at CRL.A. 70/2018 Page 8 of 30 the instance of neighbors. He denied the suggestion that he did not make any statement to the police in the Police Station.
11. From the cross-examination of PW-2- Kamal, it is seen that there was no specific cross-examination on the incident narrated by him, i.e. of the accused Murari calling Kamal; of Kamal going to his jhuggi; the accused handing over the prosecutrix to Kamal, to hand her over to her mother; of the undergarment of the prosecutrix being lowered up to knee; of the prosecutrix crying; of Kamal handing over the prosecutrix to her mother; of the prosecutrix- upon being asked by her mother about the cause of her crying, pointing towards her private part and also pointing towards the jhuggi of the accused-Murari; and, of the complainant going to the jhuggi of the accused Murari and bringing him out of his jhuggi.
12. The statement of the complainant-Asha was recorded as PW1. She was consistent in her testimony with what was stated in her complaint/Rukka Ex.PW1/A. In her examination-in-chief, PW1, inter alia, stated:
"On 10.04.2012 at about 06:30 P.M. my daughter "K" aged about 2 years had gone for the purpose of playing outside my house. I saw that accused Murari lifted my daughter in his lap. After sometime, our neighbour Kamal brought "K"in his lap. Kamal told me that he has brought my daughter "K"from the house of Murari and told that my daughter was weeping loudly. I asked my daughter as to why she is weeping. She pointed out towards the house of accused Murari and also told that Murari has beaten her at the place of Shu-Shu (the place from where the urine was passing). I checked her private part and saw that blood was oozing from her vagina. The underwear (Kachchi) CRL.A. 70/2018 Page 9 of 30 of yellow color was below her knees and same was blood stained. I immediately went to the house of the accused Murari and brought him out from his house and took him to the police station alongwith my daughter who was in my lap. I narrated the incident to the police. The police recorded my statement which is now Ex.PW1/A bearing my RTI at point A. The police took my daughter to AIIMS hospital where my daughter was medically examined. I had produced the blood stained Kachchi of my daughter to the police. The police took into possession the same vide seizure memo now Ex. PW1/B bearing my signature at point A."
13. PW1-Asha identified the underwear of her daughter Ex. P-1. PW1- Asha was cross-examined at length on behalf of the accused. In her cross- examination she, inter alia, stated that Kamal-PW2 had himself disclosed the entire incident and the cause of the weeping of her daughter. She stated that Kamal had stated to her that he had witnessed the incident. She denied the suggestion that when Kamal had brought her daughter; he had stated to her that the accused Murari had handed over the child to him to be given to her mother. She stated that she straight away went to the Police Station after taking the accused-Murari with her. She had disclosed about the incident which happened with her daughter to her mother-in-law and 2-3 other ladies residing in the neighborhood. She stated that she must have reached the Police Station at around 07:00 P.M. along with the accused and several other persons from her neighborhood. Her mother-in-law accompanied her to the Police Station. Kamal had also reached the Police Station thereafter. She stated that she was inside her home when her daughter was playing outside at around 06:00 P.M. She further stated that her daughter was weeping a lot and pointing out towards her private part when she was handed over by CRL.A. 70/2018 Page 10 of 30 Kamal to her. She stated that she thought that the prosecutrix wanted to pass urine, and when she checked her panty, she was bleeding from her private part. She denied the suggestion that her daughter was not bleeding from her private part when Kamal had handed over the prosecutrix to her. She denied the suggestion that while she was inside the house, her daughter was playing outside with Kamal and that she had sustained injuries, or that thereafter she started crying, or that blood was oozing out due to the injury sustained by her. She denied the suggestion that no such incident had happened. It was suggested to her that Kamal had given his statement as parents of Kamal were having acrimonial terms with the parents of the accused-Murari. Pertinently, no such suggestion was given to Kamal. She denied that blood was not oozing out from the body and injured parts of the prosecutrix. During her cross examination, PW1-Asha was shown Ex.P-1 and questioned if it contains blood stains. The learned ASJ records:
"The witness has looked the panty and states that around the cut mark (the piece cut by the doctor) there are still visible blood stains."
14. Pertinently this statement was not challenged any further on behalf of the accused, and the learned ASJ was not called upon to herself return a finding whether, or not, there were blood stains visible on the underwear of the prosecutrix Ex.P-1. She denied the suggestion that the underwear Ex.P- 1 produced in Court did not belong to her daughter, or that there are no blood stains on the same.
15. The doctor who examined the prosecutrix, namely, Dr. Unnati Shende, Senior Resident, Department of Obs. and Gynae., AIIMS was CRL.A. 70/2018 Page 11 of 30 examined as PW-5. She exhibited the MLC as Ex.PW5/A bearing her signatures. She stated that upon examination she had opined that the hymen of the prosecutrix was torn. She also collected the vaginal smear and undergarments of the prosecutrix and sealed the same with the seal of the hospital along with the sample seal and handed over the same to the police. She was cross-examined and opined that, in case of fall of a child of the age as in the present case, and if the injury is caused to her private part by something edged sharp, then in that circumstance the hymen can be torn. Pertinently no question was put to PW-5 as to whether, or not, she noticed any blood oozing out from the private part of the prosecutrix.
16. PW-14, Ms. L. Babyto Devi, Assistant Director, FSL, Rohini, New Delhi exhibited the FSL Report Ex.PW14/A, according to which no male profile could be generated from Ex.1 & Ex.2 (vaginal smear and underwear of victim) due to degradation of samples. Consequently, no comparison was possible with male profile generated from Ex.3 (blood in gauze of accused).
17. The statement of accused was recorded under Section 313 Cr.P.C. He denied all the evidences put to him. He stated that he had been falsely implicated but he did not know why he had been falsely implicated in the present case.
18. The submission of Ms. Tiwari, learned APP is that the impugned judgment is patently laconic and the learned ASJ, while acquitting the accused, has brushed aside the evidence led by the prosecution without any justification. She submits that PW2-Kamal consistently narrated the incident witnessed by him in his statement recorded under Section 164 CRL.A. 70/2018 Page 12 of 30 Cr.P.C., Ex.PW-9/B, as well as in his testimony recorded before the Court. Ms. Tiwari submits that the testimony of PW2 is consistent with that of PW1-Asha. She submits that the statements of PW2 and PW1 are also corroborated by the MLC of the victim Ex. PW5/A. The doctor PW-5 found erosion on the left labia major and there was oozing seen from the erosion. The doctor also noticed redness on the labia. The hymen of the prosecutrix- who was only two years old, was torn.
19. Ms. Tiwari submits that the prosecutrix was seen to be taken by the accused-Murari by PW1 and after some time, she was handed over by him to PW2-Kamal. During the time that the prosecutrix was with the accused- Murari, she suffered injury on her private part- which she herself narrated to the complainant. Thus, it was for Murari to explain as to how the prosecutrix had received injury on her private part. The other circumstances established were that Kamal (PW-2) had also stated that the undergarment of the prosecutrix was lowered upto her knee when she was handed over to him by the accused. He had exhibited his earlier statement recorded under Section 164 Cr PC, wherein he had stated that blood was oozing from her private part. The accused, however, offered no explanation when his statement was recorded under Section 313 Cr.P.C. Ms. Tiwari submits that, in these circumstances, it stood conclusively proved that the accused had committed rape upon the prosecutrix. It is this act of the accused which led to the prosecutrix crying out loudly; suffering bleeding from her private parts; tear of hymen and erosion in the labia region with oozing and; redness on labia. Ms. Tiwari submits that the learned ASJ had completely ignored the said material evidence brought on record. Thus, she submits that the impugned CRL.A. 70/2018 Page 13 of 30 judgment cannot be sustained as it stands conclusively established from the evidence brought on record that the accused is guilty of rape of the prosecutrix.
20. On the other hand, learned counsel for the accused has, firstly, argued that the conduct of the accused does not support the charge. PW1 in her cross examination had admitted that after the incident when the complainant PW1 came to the jhuggi of the accused to take him to the Police Station, he did not resist or run away. She admitted that "The accused did not try to run away from the way to Police Station". Learned counsel further submits that there is no evidence of any bleeding or blood oozing out of blood from the private part of the prosecutrix in the present case. Apart from the statement of the complainant-PW1, there is no evidence brought on record in this regard and same is not mentioned in the MLC of the victim Ex.PW5/A; or in the statement of the examining doctor PW5; or by any of the police witnesses. He further submits that even the FSL report does not record presence of any blood stain of the prosecutrix on the undergarment Ex.P1. He submits that if the prosecutrix - who is only two years old, were to be subjected to rape, there would have been heavy bleeding. No bleeding was found by the crime team at the place of occurrence. Learned counsel further submits that even the medical examination of the accused showed that he had not suffered any injury on his private part, which he would have suffered had he committed rape upon the two-year-old prosecutrix. Learned counsel further submits that PW1 had claimed that Kamal-PW2 had witnessed the incident and that he had narrated the same to her. However, CRL.A. 70/2018 Page 14 of 30 Kamal had not claimed that he had witnessed the accused raping the prosecutrix. He submits that PW1-Asha is, therefore, not credible.
21. Learned counsel has also sought to raise a doubt on the case of the prosecution on the basis of the testimony of Constable Seema-PW10. He submits that the case of the prosecution is that PW1-Asha had taken the accused-Murari along with her, the prosecutrix, and her mother-in-law to the police station. However, PW10-Seema deposed that, when on 10.04.2012, at about 6:30 P.M./07:00 P.M., the complainant-Asha along with her daughter, i.e., the prosecutrix came to the Police Station and reported the rape committed upon her daughter, she along with SI Kusum Dangi (PW-
13), the complainant-Asha and the prosecutrix went to the spot where the child pointed out towards the jhuggi of the accused, and at that place the accused-Murari had beaten her. She deposed that the accused-Murari was also present there. In her cross-examination, she stated that when she met the prosecutrix and her mother in the Police Station, the accused-Murari was not with them.
22. According to learned counsel, this is a serious contradiction in the case of the prosecution. Learned counsel has further submitted that the I.O., S.I. Kusum Dangi-PW13 had claimed that the undergarment of the prosecutrix has been seized vide seizure memo-Ex.PW-1/B, and that the same was sealed. However, PW5-Dr. Unnati Shende had deposed that she had collected the vaginal smear and the undergarments of the prosecutrix and sealed the same with the seal of the hospital and handed over the same CRL.A. 70/2018 Page 15 of 30 to the police along with the sample seal. However, the undergarment of the prosecutrix was received in the FSL only with the seal of the I.O.
23. Learned counsel also placed reliance on the judgment of the Division Bench of this Court in Pappu vs. State of Delhi, CRL.A.267/2007 decided on 27.05.2009, to submit that the mere fact that the hymen was found ruptured upon medical examination, does not imply rape. He submits that if the hymen of the prosecutrix had been torn/ ruptured on the date of the incident, there would definitely have been bleeding, which would have been visible at the place of incident; on the private part of the accused and on his clothes, and; on the private part of the prosecutrix and her undergarment. However, no blood was seen at any of these places. Learned counsel submits that the impugned judgment contains a probable view and this Court should not interfere with the same in appeal.
24. We have heard learned counsels and carefully examined the evidence brought on record. We have also perused the impugned judgment and scrutinized the reasoning adopted by the learned ASJ while deciding the case before him.
25. PW-1 Asha, the complainant and the mother of the prosecutrix had stated in her very first statement given to the police Ex. PW-1/A, that the prosecutrix had gone down to play at about 6:30 p.m. and she saw the accused - her neighbour who resides 4-5 jhuggis away, take the prosecutrix in his lap. This statement was recorded on the date of the incident itself. She has stated to the same effect while recording her testimony in Court on 12.10.2012. Pertinently, there is no specific challenge to this statement of CRL.A. 70/2018 Page 16 of 30 hers by the accused in her cross-examination. The suggestion given to PW- 1 in her cross-examination was that while PW-1 was insider her home, the prosecutrix was playing outside and while playing with Kamal PW-2, she had sustained injuries and that after sustaining such injuries she started crying as it was raining and that blood oozed out due to the injury sustained by her. There is no specific challenge to the statement of PW-1 that the accused had taken the prosecutrix in his lap. PW-1 is the eye witness to the factum of the accused lifting the prosecutrix in his lap.
26. The factum of the prosecutrix being taken by the accused is also established by the fact that she was returned by him to PW-2 Kamal. The statement of Kamal was initially recorded under Section 164 Cr PC and in the said statement (Ex. PW-9/B) he, inter alia, stated that on the previous day i.e. 10.04.2012, he was going through the galli. The accused Murari handed over the prosecutrix to him and told him to give the prosecutrix to the complainant - her mother. PW-2 in his testimony recorded before the Court was consistent on this aspect. He, inter alia, stated that on 10.04.2012 at about 6:45 p.m. he was going towards his house when the accused called him. He went to the jhuggi of the accused Murari and Murari handed over to him the prosecutrix. He then delivered the child/ prosecutrix to her mother i.e. PW-1. PW-1 Asha has also deposed that it was Kamal PW-2 who had brought the prosecutrix to her.
27. Pertinently, no motive for false implication was attributed by the accused to either PW-1, or PW-2. In respect of PW-2, it was suggested to PW-1- during her cross-examination, that Kamal had given the statement CRL.A. 70/2018 Page 17 of 30 against the accused as the parents of Kamal were having acrimonial terms with the parents of the accused. However, during cross-examination of PW- 2 it was not suggested to him that he was deposing falsely on account of acrimony or animosity between his parents and the parents of the accused. While recording his statement under Section 313 Cr PC, the accused claimed that he had been falsely implicated, while also stating that he did not know why he had been falsely implicated in the present case.
28. Thus, in our view, it stood clearly established beyond all reasonable doubt that the prosecutrix was taken by the accused to his jhuggi after she was taken in his lap by the accused at about 6:30 p.m. The recovery of the prosecutrix from the accused at his jhuggi by Kamal PW-2 is also clearly established.
29. The duration/ time span between the time when PW-1 saw the accused take the prosecutrix in his lap, and the time when the prosecutrix was returned by the accused to PW-2 Kamal is only about 15 minutes. During this period, when the prosecutrix was with the accused, she was allegedly sexually assaulted. On this aspect we may examine the evidence brought on record.
30. PW-2 in his statement recorded under Section 164 Cr PC, inter alia, stated that the prosecutrix was pointing towards her private part and saying that the accused had done something to her over there. She was crying loudly and her underwear was half down. Pertinently, he also stated that blood was oozing out of the vagina of the prosecutrix. PW-2 deposed before the Court that the prosecutrix was handed over by the accused to PW-2 for CRL.A. 70/2018 Page 18 of 30 being returned to the complainant/ mother of the prosecutrix and at that time the prosecutrix was weeping loudly and was pointing towards her private parts. He, inter alia, stated that PW-1 enquired from the prosecutrix about the cause of her crying, and she pointed towards her private part and also towards the jhuggi of the accused Murari.
31. PW-1 stated in her initial statement given by her to the police i.e. in the rukka Ex. PW-1/A, that when Kamal brought the prosecutrix to her, he informed her that he had brought the prosecutrix from the residence of Murari. She had stated that the prosecutrix was crying very loudly and her underwear was down. She asked the prosecutrix as to what had happened. The prosecutrix pointed towards the house of the accused Murari and upon being asked whether she had been hit by Murari, she pointed out towards her private part and stated that she was hit on the vagina (su su mein mara). She also stated that she saw that the prosecutrix was bleeding from her private part. In her cross-examination conducted on 27.09.2013, PW-1, inter alia, stated that she thought that the prosecutrix wanted to pass urine and when she checked her panty/ underwear, she was found bleeding from her private part. From the testimony of PW-2, which was consistent with his statement recorded under Section 164 Cr PC, it is established that the accused did assault the prosecutrix on her private parts. This position is also corroborated by the statement of PW-1 narrated in the rukka; in her testimony, and by the MLC of the prosecutrix. The issue then is whether the said assault tantamounted to rape or not.
CRL.A. 70/2018 Page 19 of 3032. The submission of counsel for the respondent/ accused is that there was no evidence to show that the prosecutrix suffered any bleeding. In this regard, the accused has relied upon the cross-examination undertaken on his behalf of PW-1 and PW-2; on the MLC Ex. PW-5/A of the prosecutrix, and; on the statement of the Doctor PW-5. The submission of learned counsel is that the MLC Ex. PW-5/A only mentions "H/o bleeding" from the vagina and her undergarments were stained with blood. Learned counsel submits that this is not the finding/ observation made by the Doctor PW-5. The Doctor did not find any blood oozing from the vagina of the prosecutrix when she was examined sometime after the incident i.e. at 8:43 p.m. Even the FSL report Ex. PW-14/A does not make any mention of any blood of the prosecutrix being found either on the vaginal smear (Ex.1), or the underwear of the prosecutrix/ victim (Ex. 2). It is also submitted that no blood was found by the crime team at the jhuggi of the accused, and had the accused committed rape upon the prosecutrix, some blood would have also fallen on the ground in the said jhuggi. No blood was found upon medical examination of the accused on his private parts. Thus, it is argued that the tear in the hymen could have been an old one.
33. On the aspect of blood oozing out from the private part of the prosecutrix, as noticed herein above, the mother of the prosecutrix disclosed the same in her very first statement (Ex. PW-1/A) recorded soon after the incident was discovered. Pertinently, the underwear of the victim was seized by the police, there and then vide Ex.PW-1/B and converted into a pulanda. The same was thereafter produced before the Doctor PW-5 at the time of examination of the prosecutrix in a sealed condition. This position is CRL.A. 70/2018 Page 20 of 30 recorded in the MLC Ex.PW-5/A. Not only did PW-1 state about the bleeding consistently in her initial complaint/ rukka and in her testimony, but even PW-2 stated so while recording his statement under Section 164 Cr PC (Ex. PW-9/B), that the prosecutrix was bleeding from her vagina.
34. On the said aspect of the blood oozing out of the private part of the prosecutrix, PW-1 was challenged in her testimony during her cross examination. Pertinently, during the cross examination of PW-1, counsel for the accused showed the underwear of the prosecutrix to the witness and questioned if it contained blood stains. PW-1 looked at the underwear and stated that around the cut mark (the piece cut by the Doctor) "there are still visible blood stains". Noticeably, the accused did not proceed with further cross-examination of PW-1 on the said aspect. If the accused was not satisfied with the answer given by PW-1, and still maintained that there was no blood stains on the underwear (Ex. P-1), nothing prevented him from suggesting to PW-1 that she was lying about the same, and inviting the learned ASJ to examine Ex. P-1 for himself, and record a finding as to whether, or not, there were any blood stains visible on the underwear/ panty of the prosecutrix Ex. P-1. However, that line of cross-examination was not taken, and on this aspect it was abandoned by the accused. On the other hand, it was suggested to the witness that the panty/ underwear Ex. P-1 produced in the court did not belong to the prosecutrix or that there is no blood stain on the same.
35. There is no basis for the accused to claim that since the prosecutrix was only two years old, there would have been heavy bleeding if she had CRL.A. 70/2018 Page 21 of 30 been subjected to rape. Pertinently, on this aspect, no suggestion was put to the Doctor PW-5. It would depend, inter alia, on the force and intensity with which a child victim of this age is penetrated, as to how much bleeding would occur upon the hymen being torn. The prosecutrix was only two years of age at the time when the incident took place. Thus, there is every likelihood that the bleeding that she may have suffered was not heavy or continuous. During the cross-examination of PW-5, she had stated that in case of fall of a child of the age as in the present case, and if the injury is caused to her private part by something edged sharp, then in that circumstance the hymen could be torn. However, there was no direct question put to her that the prosecutrix had suffered the injury from a sharp object in her private part. Pertinently, there was no cut or injury suffered by the prosecutrix on her private part, apart from L/E erosion on (L) Labia major. In any event, it was for the accused to explain as to who, and in what manner, had inserted anything into the vagina of the prosecutrix which resulted in the rupture of the hymen and the injuries which were noticed on her private parts.
36. The underwear worn by the prosecutrix i.e. Ex. P-1 had been removed at the police station and converted into a pulanda. This is not only evident from Ex. PW-1/A and Ex.PW-1/B but also from the MLC Ex. PW-5/A, which records that the undergarments were sealed by the police.
37. The "oozing from erosion seen", coupled with "redness on labia" are observations which corroborate the statement of PW1 and PW2 that the prosecutrix did suffer bleeding from her private part due to the sexual CRL.A. 70/2018 Page 22 of 30 assault. No doubt, the FSL report Ex. PW-14/A is silent on this aspect, but the reason therefor clearly is that the FSL report only pertains to the DNA analysis, and not to the serological examination of the samples. Thus, it cannot be concluded upon perusal of Ex. PW-14/A that no blood was found on Ex.1 i.e. the vaginal smear, or Ex.2 i.e. the underwear of the victim.
38. Learned counsel for the respondent/ accused has raised a doubt on the case of the prosecution by placing reliance on the testimony of Const. Seema PW-10. PW-10 had, inter alia, stated that on 10.04.2012 at about 6:30/ 7:00 p.m., the complainant PW-1 had come along with her daughter/ prosecutrix to the police station and reported about the rape having been committed upon her daughter. Thereafter, she along with SI Kusum Dangi, PW-1 and the prosecutrix had gone to the spot where the child pointed out towards the jhuggi of the accused and told that at that place the accused had beaten her. The statement made by PW-10 to the effect that "the accused Murari was also present there" is relied upon by the accused, since, according to the case of the prosecution he was not present at the spot when PW-1 had gone with the prosecutrix and the aforesaid police officers to his jhuggi.
39. On this aspect, we have carefully examined the testimonies of the other witnesses. PW-11 HC Ajit Singh has deposed that on 10.04.2012 he was posted as Head Constable of PS Kalkaji and joined the investigation in the case with the I.O. He stated that he along with SI Kusum Dangi had gone to Sudhar Camp and they had started from the police station. He, inter alia, stated in his cross examination that he was called in the police station when the I.O. had received the information of the incident. He along with SI CRL.A. 70/2018 Page 23 of 30 Kusum Dangi, mother of the prosecutrix and the prosecutrix started from the police station to the place of the incident and arrived there after 15-20 minutes. Pertinently, he stated that the accused was not present when he reached the spot along with the I.O. The accused was not found present there. He also stated that the I.O. had not arrested the accused from the spot in his presence. He also stated that when he came back to the police station after visiting the place of occurrence, the accused was present in the police station and that he had not brought the accused from the place of the incident to the police station. Thus, the testimony of PW-11 HC Ajit Singh falsifies the testimony of PW-10 that the accused Murari was present at the spot when she along with SI Kusum Dangi, the complainant and her daughter had gone to the spot.
40. PW-12 SI Sanjay, who was posted as crime team in-charge in the Mobile Crime Team (South-East) stated that on 10.04.2012, he along with Const. Puneet and HC Kuldeep reached the spot i.e. Jhuggi no.346, Sudhar Camp, Kalkaji and remained present there from 8:30 p.m. to 9:15 p.m. He, inter alia, stated in his cross-examination that the accused Murari was not present there. He also stated that the complainant was present when he reached the spot. Thus, the testimony of PW-12 SI Sanjay corroborates the testimony of PW-11 HC Ajit Singh and falsifies the testimony of PW-10 Const. Seema on the aspect of the presence of the accused Murari at the spot when the police team along with the complainant and the prosecutrix went to the jhuggi of the accused.
CRL.A. 70/2018 Page 24 of 3041. PW-13 SI Kusum Dangi stated that on 10.04.2012, she was posted as SI in PS Kalkaji. On that day, the complainant along with her daughter i.e. the prosecutrix and her mother- in- law visited the police station and also produced the accused Murari with the allegations that Murari had committed rape upon her daughter. Thus, PW-13 categorically stated that the accused Murari was produced in the police station by the complainant herself. She further stated that after registering the FIR on the basis of the statement of the prosecutrix, the accused "Murari was sent to hospital for his medical examination through constable Bhajan and I alongwith police staff and victim and her mother reached at the scene of crime where I prepared site plan". Thus, PW-13 SI Kusum Dangi brings out the picture clearly that after registration of FIR, the accused was sent for medical examination, whereas the complainant along with the prosecutrix and the police officials reached the spot of occurrence. There was no question of the accused Murari accompanying the police party, the complainant and the prosecutrix when they visited the spot, or the accused Murari being present at the spot during the said visit- as claimed by PW-10 Const. Seema.
42. The statement of PW-13 corroborates the statements of PW-11 and PW-12 on the said aspect, and demolishes the testimony of PW-10 to that extent. It is interesting and pertinent to note that PW-10 not only tried to twist the fact with regard to the accused being present at the spot of occurrence when the police party visited the same along with the complainant and the prosecutrix, but also mislead the Court about the place of his arrest. It is also interesting and pertinent to note that she failed to identify the accused. The incident occurred on 10.04.2012 and the statement CRL.A. 70/2018 Page 25 of 30 of PW-10 Const. Seema was recorded on 07.11.2013 i.e. about one year and seven months later. Surprisingly, despite being a trained police officer- who is expected to have developed the skill of recognizing and recalling faces, she stated that " I do not remember the face of the accused now"- though she correctly identified the accused. It appears to us that Const. PW-10 Seema may have been won over and for that reason sought to mislead the Court and weaken the case of the prosecution by creating confusion during the trial. Unfortunately, the Trial Court has not undertaken a thorough scrutiny of the evidence which we have done herein above. Conveniently, the learned ASJ has sought to rely upon the so-called contradiction premised on the testimony of PW-10 in para 9 of the impugned judgment.
43. It has been argued on behalf of the accused that his conduct in accompanying the complainant PW-1 to the police station and not running away is indicative of his innocence. We cannot agree with this submission in the facts and circumstances of the case. Firstly, it cannot be stated that in every such case the accused would necessarily escape and not go to the police station. It entirely depends on the mental makeup of the concerned person at the given point of time. How a human being would react to a particular situation cannot be predicted since reactions to any given situation may vary from person to person, and even in respect of the same person, from time to time. There cannot be any hard and fast yardstick or rule about it. Moreover, it has come on record that the complainant PW-1 was accompanied by her mother-in-law and few others from the locality. That could also explain the reason for the accused not attempting to escape, or not CRL.A. 70/2018 Page 26 of 30 being able to escape even if he entertained the idea in his mind, while he was being taken to the police station.
44. No doubt, the testimony of PW-1, insofar as she states that PW-2 had witnessed the incident, and that he had narrated the same to her is not supported by the evidence brought on record. This was not so stated by PW2. The said statement is, in any event, hearsay and would not be admissible. In our view, this inconsistency/ improvement is, in any event, not so grave as to completely discredit PW-1 the complainant and reject her testimony in its entirety.
45. The submission of learned counsel for the respondent that there is any irregularity in the manner of seizure of the undergarment of the prosecutrix is also meritless. The rukka itself records that the underwear of the prosecutrix was seized by the police and converted into a pulanda vide seizure memo Ex. PW-1/B. Pertinently, in the MLC of the prosecutrix, the Doctor PW-5 also records the said position. Thus, when the underwear was produced before PW-5, the same was already sealed. PW-5, the examining Doctor stated that she collected the vaginal smear and the undergarment of the prosecutrix and sealed the same with the seal of the hospital.
46. The FSL report describes parcel "2" as one sealed cloth parcel sealed with the seal of "KD" containing Ex."2". Ex."2" is one baby underwear described as "underwear of victim". Thus, from the FSL report (Ex.PW- 14/A), it is seen that the said underwear was received with the seal of "KD", i.e. the seal of the I.O., and not with the seal of the hospital. It appears to us that there is a minor discrepancy in the statement of PW-5 Dr. Unnati CRL.A. 70/2018 Page 27 of 30 Shende, when she claimed that she collected the vaginal smear and undergarments of the prosecutrix and sealed the same with the seal of the hospital. In fact, it appears from the record that only the vaginal smear was sealed with the seal of the hospital and not the underwear. This is evident from the FSL report (Ex.PW-14/A). This minor discrepancy does not go to the root of the matter. In any event, the said discrepancy loses its significance in view of the fact that the FSL report is of no avail to either of the parties. As per the report, the FSL could not isolate the DNA on account of degradation of the sample.
47. Thus, we are satisfied that the prosecution has been able to establish that the blood was oozing from the private part of the prosecutrix when she was returned by the respondent accused to Kamal. The same was not only noticed by Kamal, but also by PW-1, the mother.
48. Reliance placed by the accused on the judgment of this Court in Pappu (supra) appears to be misplaced in the facts and circumstances of the case. In Pappu (supra), apart from the fact that the hymen of the prosecutrix was found to be torn, there was no evidence of fresh bleeding in the vagina or near the hymen. No external injury whatsoever was noted in or around the private parts of the prosecutrix. However, as noticed in the present case, there was bleeding noticed from the private parts of the prosecutrix and even in the MLC there were injuries noticed i.e. erosion on (L) Labia major; oozing from erosion seen, and; redness on Labia. Thus, it cannot be accepted that the hymen of the prosecutrix may have been torned at some earlier point of time. Pertinently, the prosecutrix was only about two years CRL.A. 70/2018 Page 28 of 30 old. A child of that age is, even otherwise, not capable of undertaking vigorous physical activity which would lead to rupture of the hymen. During the cross-examination of the Doctor PW-5, it was suggested on behalf of the accused that the hymen of the child of two years could be torn if she suffers injury on her private parts with a sharp object. However, there is no evidence of any such injury being suffered by the prosecutrix when she was with the accused in the jhuggi. It was for him to explain the same, which he has failed to do.
49. The medical examination of the accused did not show any injury on his private part. Generally, the offender, in such like situations, would suffer injury on the penis, since the vagina of a two year old child would not admit the penetration of the penis of a grown up person. Thus, it appears to us that the accused cannot be said to have committed rape upon the prosecutrix as defined in Section 375(a) of IPC. However, rape is defined widely in the said section and even the insertion, to any extent, of any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman tantamounts to rape under Section 375(b) IPC.
50. It is clear to us from the evidence brought on record that the respondent had committed rape on the prosecutrix covered under section 375(b) IPC, which resulted in the suffering of injuries by the prosecutrix in her private parts; tear of her hymen; oozing of the blood, and; the suffering of injuries on the private part as taken note of herein above. Having considered the entire evidence in the case, we are of the view that the respondent is guilty of rape on the prosecutrix and the offence of the CRL.A. 70/2018 Page 29 of 30 respondent clearly falls under section 375(b) IPC. Accordingly, we set aside the impugned judgment which suffers from glaring illegalities and perversities taken note of herein above.
51. The respondent is, accordingly, convicted under Section 376(2)(f) IPC, since the prosecutrix was under twelve years of age.
VIPIN SANGHI, J.
P. S. TEJI, J.
MAY 02, 2018 nk/sr CRL.A. 70/2018 Page 30 of 30